RIAA now wants to avoid trial in innocent infringement case

In the wake of a federal judge's overturning the $222,000 infringement award …

The RIAA has apparently had a change of heart towards a Texas woman accused of sharing music over KaZaA when she was 16 years old. In Maverick v. Harper, the industry group has backed off its demand for a jury trial and has instead opted to accept a judge's $7,400 damage award: $200 for each of 37 songs downloaded in whole or in part by the RIAA's hired investigative gun, MediaSentry.

Whitney Harper admits to using KaZaA, but said that she had no idea that it was illegal to download and share music over P2P. She cited a lack of warnings from the KaZaA software that the music contained on the popular network was "stolen or abused copyrighted material" and a general lack of understanding of copyright infringement, P2P applications, and P2P networks.

Judge Xavier Rodriguez ruled in September that, while Harper was guilty of copyright infringement, she was an "innocent infringer." So instead of having to pay up to $30,000 in damages for each of the 37 songs, Harper was directed to pay $200—below the usual $750 lower limit for violations of the Copyright Act.

Initially, the RIAA resisted the judge's ruling, opting instead for a trial on the amount of damages. The RIAA has since altered its stance, filing a motion for entry of judgment and fighting Harper's request that the trial go forward. Harper makes "no cogent argument to demonstrate why Plaintiff's Motion should not be granted," argue the record labels. "Instead, Defendant attempts to resurrect an issue that has no bearing on Plaintiffs' motion and that has already been decided by the Court, twice."

The issue referred to by the RIAA is whether simply making a file available over a P2P network is sufficient to constitute copyright infringement. Judge Rodriguez had ruled previously in Maverick v. Harper that making available constituted infringement, notes the RIAA, and Harper's attempts to get him to reconsider are "vexatious."

What the RIAA fails to note is that the landscape has changed, not only since Maverick v. Harper was originally filed in 2007, but in the weeks since the judge's $200-per-song award was made. Just days after the RIAA rejected that award, a federal judge in Minnesota overturned the $222,000 verdict against Jammie Thomas, citing an incorrect jury instruction on the "making available" issue.

Harper's attorneys included that opinion in their motion asking that the trial go ahead as planned. While it would be appropriate in a "normal lawsuit" to stick with the $7,400 judgment, argue her attorneys, this case is anything but normal. "[I]in this case we have this single case, one of tens of thousands of lawsuits filed as a part of a massive campaign to preserve a business model currently dominant in the music," reads the motion. "This Court is aware that this case is not about the actions of Whitney Harper, a young lady who was 14 to 16 years old at the time of alleged infringement. It is instead about an 18 billion dollar industry that was once on a rising trend, now facing its comeuppance by rapidly evolving technology and eroding morals."

An RIAA spokesperson declined to comment on why the group has reversed course and decided to accept the $7,400 judgment mere weeks after angling for a much higher number. We suspect there are a couple of factors. First is the making-available issue mentioned above. It's a bedrock of the group's legal campaign against P2P users, and the RIAA is anxious to avoid having that eroded by yet another adverse ruling.

Another reason is bad PR. That's right—despite appearances, the RIAA does have concerns about its public image. RIAA and record label executives are on record that the lawsuits are not meant to make money; rather, they are meant to educate users and act as a deterrent. We noted in our previous coverage of this case that rejecting the court's award and pushing for what could be a six-figure damage award made the RIAA look hypocritical.

Should the judge deny the RIAA's motion for entry of judgment, the trial would take place in mid-November.